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Hinduism and International Humanitarian Law

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Hinduism and International Humanitarian Law REVIEW Hinduism and international humanitarian law Manoj Kumar Sinha* Manoj Kumar Sinha is Visiting Professor at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund, Sweden, and Assistant Professor (on leave), at the Indian Society of International Law, New Delhi. "Thou shalt love thy neighbour as thyself because thy neighbour is thyself; God is in both thee and thy neighbour, and both are in God. He who acts in this spirit need not fear that his acts will bind him to further existence!'1 Abstract This article examines the relationship between Hinduism and war and the extent to which the fundamental concepts of humanitarian law are recognized in Hinduism. After reviewing the sources of Hinduism, it considers the permissibility and types of war in ancient India, explores the rules of warfare and investigates whether war was a matter of course or regarded as a ruler's last choice. It then sets out the humanitarian principles that already applied at that time. Finally, it considers how far the concepts of Hinduism have helped in the development of international humanitarian law. The laws of armed conflicts were founded in ancient India on the principle of humanity. The ancient Hindu texts clearly recognized the distinction between military targets, which could be attacked, and non-military persons and objects, which could not be attacked. Warfare was thus largely confined to combatants, and only the armed forces were legitimate targets. It was not allowed to destroy either cities or towns during war. Humanitarian considerations are also a powerful motivating force behind the codification of modern international humanitarian * My sincere thanks to my wife Preet Kumar Sinha for her support and encouragement. Special thanks to Dr. Noelle Quenivet for her valuable suggestions. 285 M. K. Sinha - Hinduism and international humanitarian law law,2 the main objective of which is to limit the suffering caused by war. This study explores the contribution of Hinduism to the development of that law. Sources of Hinduism Hinduism is a way of life, a Dharma? The word Dharma is derived from the Sanskrit word "dhri" which means "to hold together." Those who profess the Hindu Dharma and seek to follow it are guided by spiritual, social, legal and moral rules, actions, knowledge and duties which are responsible for holding the human race together. Dharma does not mean religion: it is the law that governs all actions.4 Hindu Dharma is also known under other names such as Sanatan Dharma (Sanatan means eternal and all-pervading) and Vedic Dharma (Dharma based on the Vedas5).The Hindu religion not only consists of rules encompassing the rights and duties of kings and warriors, but also provides norms of Desa Dharma6 that govern inter-State relations.7 Hinduism is based on numerous texts. Because Hindus are considered to have the authority to introduce new elements and ideas into their religion, countless volumes of commentaries, traditions and teachings exist.8 The pri- mary sources of Hinduism are Sruti and Smriti.9 Sruti literally means what is heard, while Smriti designates what is remembered. In this regard, Sruti is rev- elation and Smriti tradition. Srutis are the four Vedas, the Rig Veda, Sam Veda, Yajur Veda and Atharva Veda. Each Veda consists of four parts: the Samhita (hymn), the Brahmana (rituals), the Aranyakas (interpretations) and the Vedanta (Upanishads).10 The Bhagavad Gita ("The Lord's Song"; c. 200 BC), part of the epic poem Mahabharata, is the most influential Hindu text.11 Manu, Yajnavalkya and Prasara are the most celebrated law-givers of ancient India;12 the Smritis are named after them. There are eighteen main Smritis or Dharma Sastras. Hindu jurisprudence regards the Smritis as the foundation of law. The 1 The Bhagavad Gita, quotation at <http://wrc.lingnet.org/hindueth.htm> (last visited 4 February 2005). 2 The humanitarian principles are largely articulated in The Hague Conventions of 1899 and 1907 and the four Geneva Conventions of 1949 and their two Additional Protocols. For the texts see Handbook of the International Red Cross and Red Crescent Movement, ICRC, Geneva, 1994. 3 K. R. R. Sastry, "Hinduism and international law", Recueil des Cours, 1966 (I), Vol. 117, pp. 507-614. 4 Ibid. 5 The Vedas, philosophical teachings written by ancient inhabitants of India, serve as the foundational texts of Hinduism. 6 The word Desa Dharma combines two words of Sanskrit, Desa, which means land, and Dharma, which means duty. 7 C. J. Chacko, "India's contribution to the field of international law concepts", Recueil des Cours, 1958 (I), Vol. 93, pp. 121-221. 8 See generally, Lakshmikanth Penna, "Traditional Asian approaches: An Indian view" Australian Yearbook of International Law, 1985, Vol. 9, pp. 168-206. 9 Ibid., pp. 176-181. 10 Ibid. 11 Surya P. Subedi, "The concept in Hinduism of just war", Journal of Peace and Conflict Studies, 2003, Vol. 8, pp. 339-361. 12 Chacko, op. cit. (note 7), p. 124. 286 Volume 87 Number 858 June 2005 epic poems Mahabharata and Ramayana are also a source of law in various situ- ations.13 The Sruti, Smriti and Dharma Sastras prescribe the rules for society based on Dharma; the laws of war can be singled out from them. Hinduism and war In Hindu tradition the spirit of unity and universality extends to the whole world. The Rig Veda declares that "[t]here is one race of human beings," so the valid- ity of different traditions, religions, indeed of paths to truth, has always been respected. Our guiding principle has been "Sarva Dharma Sambhava (respect for all religions)."14 In ancient times the first and foremost duty of the king was to protect his people. Protection consisted in countering internal threats as well as external aggression to man's liberty.15 Hinduism, like most religions, believes that war is undesirable because it involves the killing of fellow human beings and hence should be avoided as a means of settling disputes.16 However, it does acknowledge that there might be situations when it is better to wage war than to tolerate evil. Already in ancient India, the importance and necessity of a standing military force was understood. This recognition subsequently led to the main- tenance of a permanent militia to fight off any kind of opposition and aggres- sion.17 The armed forces were thus also retained in times of peace. Interestingly, it was widely acknowledged that peaceful remedies should be exhausted before having recourse to armed force. Ancient India developed a method in four suc- cessive stages for the settlement of disputes between States: the first stage is called peaceful negotiation (sama); the second stage consists of offering gifts (dana) to appease the enemy; the third is a veiled threat (bheda); and the last stage allows the use of force (danda).ls The clash of arms in battle is therefore clearly undesirable as long as it can be avoided. The policy of conciliation and making gifts should be tried first before engaging in war. Types of war in ancient India The Dharma Sastras and epics recognized two kinds of war: Dharma Yuddha (righteous war), and Adharma Yuddha (unrighteous war). Adharma Yuddha 13 See in general Penna, op. cit. (note 8), pp.168-206. 14 The support for the principle of sarva dharma sambhava can be found particularly in the words of Krishna in the Bhagavad Gita: "Whosoever desires to worship whatever deity (using whatever name, form, and method) with faith, I make their faith steady in that very deity" Sarva Dharma Sambhava and Religious Freedoms, available at <http://www.globalengage.Org/issues/2002/l l/hinduism-2.htm> (last visited 6 February 2005). 15 Pandurang Varman Kane, History of Dharmasastra, Poona, 1973, Vol. 3, p. 56. 16 A. L. Basham, The Wonder that was India, Grove Press, New York, 1954; Percival Spear, A History of India, Penguin, London, 1956; Romilla Thapar, A History of India, Penguin, London, 1966. 17 Sastry, op. cit. (note 3), pp. 566-70. 18 Ibid., pp. 507-10. 287 M. K. Sinha - Hinduism and international humanitarian law was also known as Kutta Yuddha.19 Ancient Indian writers enunciated several causes for war, which can be classified in four broad categories: the desire to secure imperial power, either through aggression or through the permitted modes of the Ahwameda or Vajapeya (special kinds of sacrifices); self-preservation; the maintenance of the balance of power; and the prevention by a monarch of the oppression of his people.20 The theft of a wife was also a cause of war. For example, in the epic Ramayana, Ravana's abduction of Rama's wife was the rea- son for waging war. The great war described in the Mahabharata was the culmination of deep enmity between two royal clans, the Pandavas and the Kauravas. The Kauravas had unlawfully seized property belonging to the Pandavas. The war began after all negotiations by Krishna and others failed to avert it and it thus became inevitable. The Pandavas were left with two choices: either to fight for their right as a matter of duty, or to evade battle and accept defeat for the sake of peace. Just before the hostilities began the warrior Prince Arjuna, one of the Pandava brothers, asked Krishna to place his chariot between the two sides so that he could take a good look at his enemy. In the enemy ranks Arjuna saw his cousins, other relatives and his teachers. At that crucial moment, Arjuna's attach- ment to his family, kinsmen and teachers came to the fore, and doubt entered his mind as to the "righteousness" of the battle. In his confusion, he no longer knew which course of action he should take.
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